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Secondary boycotts (Section 8(b)(4))

The NLRA protects the right to strike or picket a primary employer - an employer with whom a union has a labor dispute. But it also seeks to keep neutral employers from being dragged into the fray. Thus, it is unlawful for a union to coerce a neutral employer to force it to cease doing business with a primary employer. That is only one aspect, however, of a complex legal picture.

Section 8(b)(4) of the Act makes it unlawful for a labor organization or its agents "(i) to engage in, or induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by Section 8(e) of the Act; (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9; provided that nothing contained in clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of Section 9; (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work." (Section 8(b)(4) also includes two provisos, discussed below.)

As stated, Section 8(b)(4)(A) makes it unlawful to engage in certain conduct with an object of "forcing or requiring any employer or self-employed person to join any labor or employer organization." The rest of this section refers to Section 8(e) and is explained below in connection with that statutory provision.

Section 8(b)(4)(C) is self-explanatory and rarely violated. It will not be further discussed here.

Section 8(b)(4)(D)'s main function is to set in motion the procedure the Board follows to resolve "jurisdictional" or work-assignment disputes under Section 10(k) of the Act. Those two sections, and the Board's jurisdictional dispute procedure, are addressed below.

Despite the mind-numbing wording of Section 8(b)(4), its essential aim is not difficult to grasp. It prohibits certain kinds of "secondary" conduct - that is, conduct aimed at a "secondary" employer (or secondary employees) in order to exert pressure on a "primary" employer. A "primary" employer is an employer with whom you directly have a labor dispute. A "secondary" employer - also called a "neutral" - is any employer that is not a primary employer, unless it is an "ally" of a primary employer. (For more about the ally doctrine, see below.)

The first proviso to Section 8(b)(4) preserves the protected right of employees of a secondary employer to refuse to cross a primary picket line. However, a sympathy striker will lose that protection and render himself vulnerable to discharge if (1) the primary strike is unprotected or prohibited; (2) a sympathy strike violates a contractual no-strike provision; or (3) the sympathy striker's refusal to cross the primary picket line disrupts his employer's business so significantly as to clearly outweigh the striker's right to honor a protected primary picket line.

Section 8(b)(4)(i) concerns conduct directed at secondary employees. It prohibits you from inducing or encouraging, with an object proscribed in subsection (A), (B), (C), or (D), "any individual employed by any person" to do certain things. For example, you may not, with a proscribed object of forcing a neutral employer to cease doing business with a primary employer, induce or encourage the neutral's employees to strike. Doing so would violate Section 8(b)(4)(i)(B).

Section 8(b)(4)(ii) concerns conduct directed at secondary (neutral) employers. It prohibits you from threatening, coercing, or restraining, with an object proscribed in subsection (A), (B), (C), or (D), "any person engaged in commerce." For example, you may not threaten, coerce, or restrain a neutral employer with a proscribed object of forcing that employer to cease doing business with a primary employer. Doing so would violate Section 8(b)(4)(ii)(B).

Notice that all it takes to violate Section 8(b)(4)(i) (assuming the other elements are met) is inducement or encouragement, whereas Section 8(b)(4)(ii) isn't violated unless you threaten, coerce, or restrain. Thus, for example, you may encourage the manager of a neutral business not to do business with a primary employer. In that case, you are approaching the manager as a person engaged in commerce, so your conduct would be evaluated under Section 8(b)(4)(ii), and no violation would lie because you have not threatened, coerced, or restrained. However, since that manager is also "an individual employed" by that neutral, you may not induce or encourage him to refuse to work in order to pressure the neutral to cease doing business with the primary. Now, it would not matter that you did not threaten, coerce, or restrain because your conduct would be evaluated under Section 8(b)(4)(i).

To "coerce or restrain" for purposes of Section 8(b)(4)(ii), union activity must involve more than mere persuasion. Picketing involves more than mere persuasion. "Picketing" includes what that word typically calls to mind: persons patrolling at the entrance to a targeted business, carrying signs affixed to sticks. But it is not limited to such conduct. Picketing has been found where signs were stuck in a snow bank and people sat in nearby cars, getting out to answer questions or talk to delivery drivers. It has been found where there were no signs at all, simply a large crowd shouting appeals for action. On the other hand, demonstrations and marches have been found not to be picketing when there were no signs or patrolling.

"Bannering" is not picketing and does not coerce or restrain for Section 8(b)(4)(ii) purposes.

Peaceful consumer handbilling does not involve more than mere persuasion and is not coercion or restraint for Section 8(b)(4)(ii) purposes. See Edward J. DeBartelo Corp. v. Florida Gulf Coast Building Trades Council, 485 U.S. 568 (1988).

A second proviso to Section 8(b)(4), the "publicity" proviso, may be safely ignored. The Supreme Court's above-cited DeBartelo decision exempting peaceful consumer handbilling from the scope of Section 8(b)(4)(ii)(B) effectively made that proviso superfluous.

Handbilling may come within the prohibition of Section 8(b)(4) under certain circumstances, such as where the union handbills and pickets, or where the handbills are directed not at consumers but at employees of a neutral to induce or encourage them to withhold their services.

Notwithstanding the general prohibition against picketing a neutral, you may picket a neutral to persuade its customers not to buy a struck product. For example, suppose you have a labor dispute with a dairy. The dairy sells its products to a grocery store, which sells them to the public. You may picket the grocery store to discourage its customers from buying the struck dairy products. You may not picket to encourage a general boycott of the store. Also, you may not picket a struck product where that product accounts for all or almost all of the neutral's business, so that an appeal to the public not to buy the struck product would threaten the neutral with ruin or substantial loss.

To be unlawful under Section 8(b)(4)(B), conduct must be undertaken with an object of "forcing or requiring any person to . . . cease doing business with any other person . . . ." Read literally, this language might suggest that so long as your aim is something less than to bring about a total cessation of business between a neutral and primary, pressure exerted on the neutral is lawful. This language is not read literally. A "cease doing business" object may be found where the aim is something less than a total cessation of business between neutral and primary. However, a union's goal in exerting pressure on a neutral may be so limited, and the likely consequences of its conduct on the neutral so slight, as to make its secondary conduct permissible.

Section 8(b)(4)(B) makes certain conduct unlawful where an object is to force or require a neutral to "cease doing business" with a primary. "An object" means what it says. The fact that challenged secondary conduct has more than one object is no defense so long as a "cease doing business" object is one of them.

Section 8(b)(4)(B) permits otherwise unlawful secondary activity where the union "has been certified as the representative" of the primary's employees. In other words, suppose you are the certified representative of A's employees, and A refuses to recognize and bargain with you. You may picket neutral B to force B to cease doing business with A to pressure A to recognize and bargain with you. Doing so would not violate Section 8(b)(4)(ii)(B).

Picketing at the site of the primary employer may impact secondary employers, but that doesn't make it into unlawful secondary activity. Suppose, for example, that you are on strike against A, whose employees you represent. Truck drivers employed by neutral B arrive at A's plant to pick up products A has sold to B. B's drivers honor the picket line, and consequently B's business is impacted. Nonetheless, the picketing remains lawful primary activity.

So-called "common situs" cases raise the question of how a union may engage in lawful primary picketing where the primary shares a worksite with one or more neutral employers. For example, a common situs situation exists where employees of the primary are working on a secondary employer's premises, or where the primary is a trucking company whose trucks make stops at neutrals' loading docks. (The latter scenario is sometimes called an "ambulatory situs", which is a type of common situs.) The general guideline for common situs situations is to minimize the impact of picketing on neutrals without substantially impairing the effectiveness of lawful primary picketing.

To translate this general guideline into specific guidance, the Board adopted the following standards in Moore Dry Dock, 92 NLRB 547 (1950), and they still apply today. "[P]icketing of the premises of a secondary employer is primary," the Board said, "if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer."

Common-situs picketing that complies with Moore Dry Dock standards is presumed lawful, and common-situs picketing that does not is presumed unlawful. In both situations, the presumption is rebuttable.

When a primary is engaged in operations on a secondary employer's worksite, the secondary typically reserves a separate gate for the primary's employees and suppliers. Where that has been properly done and the reserved gate system is honored, picketing must be confined to the gate reserved for the primary. Picketing at neutral gates falls afoul of the Moore Dry Dock requirement that picketing at a common situs be limited to places reasonably close to the site of the dispute with the primary.

What about the converse scenario, where a neutral employer is engaged in operations on the premises of a struck primary, and the primary reserves a gate for the neutral's employees? Picketing at the premises of a struck primary is garden-variety primary activity. That a neutral also is present does not make this a "common situs" situation, and the Moore Dry Dock standards do not apply. Instead, the primary or secondary nature of picketing at the neutral's reserved gate is determined under the "related-work" test. Under that test, picketing at the gate reserved for neutrals remains primary unless (1) the work done by employees of the neutral is unrelated to the normal operations of the primary, and (2) the work is of a kind that would not, if done when the primary is engaged in normal business operations, require that those operations be curtailed. For example, suppose employees of a neutral are constructing a new manufacturing facility on the primary's worksite. Meanwhile, manufacturing continues as usual in the primary's existing facility. Picketing at a gate reserved for the neutral's employees would be secondary and unlawful because their work would be unrelated to normal operations in the primary's existing facility and would not require curtailing those operations. But suppose a primary has outsourced routine maintenance of its manufacturing equipment to Company M. In that case, picketing at a gate reserved for employees of M would be primary and lawful because routine maintenance of the struck primary's equipment relates to the primary's normal business operations.

Not every employer formally distinct from a primary is necessarily a neutral. Under the "ally doctrine," an asserted neutral may be so closely related to a primary as to make primary and lawful union conduct aimed at the asserted neutral.

An asserted neutral is an ally of a primary and unprotected by Section 8(b)(4)(B) if (1) it accepts and performs struck work that, but for the strike, the primary would not have sent to it, or (2) the asserted neutral and primary constitute a single employer.

If you violate Section 8(b)(4), you may be sued for damages caused by your unlawful secondary activity under Section 303 of the Labor Management Relations Act.